Magna Chemical Manufacturers Pvt Ltd., CHENNAI V. DCIT, CHENNAI

ITA 190/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8762 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAHADEVAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . ! , ' # BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO. 190/MDS/2016 $ %$ / ASSESSMENT YEAR : 2004-05 M/S.MAGNA CHEMICAL MANUFACTURERS PVT.LTD., 16, S-4, SANGEETHA APARTMENTS, SARANGAPANI STREET, T.NAGAR, CHENNAI 600 017. PAN : AAACM 2160Q V. DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE IV(4), CHENNAI 600 034. ( &' /APPELLANT) ( ()&' /RESPONDENT) &' * + /APPELLANT BY : SHRI PHILIP GEORGE, ADVOCATE ()&'*+ /RESPONDENT BY : SHRI SAHADEVAN, JCIT , *-' /DATE OF HEARING : 07.06.2016 . % *-' /DATE OF PRONOUNCEMENT : 11.08.2016 /O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF CIT(A) -8, CHENNAI DATED 09.11.2015 AND PERTAINS TO AY 2004-05 2 I.T.A. NO.190/MDS/2016 CONFIRMING THE PENALTY LEVIED BY THE A.O. UNDER SEC TION 271 (1)(C) OF THE ACT. 2. SHRI PHILIP GEORGE, THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE IMPUGNED ORDER OF THE PENALTY PASSED BY TH E AO IS BARRED BY LIMITATION AS PROVIDED IN SECTION 275 (1) OF THE AC T. ACCORDING TO THE LEARNED COUNSEL, PENALTY CAN BE LEVIED BEFORE THE E XPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER OF CIT (A) WAS RECEIVED. IN THIS CASE, THE PENALTY ORDER WAS PASSED ON 30.03.20 11 WHICH IS BARRED BY LIMITATION. 3. REFERRING TO THE MERIT OF THE APPEAL, THE LD. CO UNSEL SUBMITTED THAT THERE CANNOT BE ANY PENALTY WHEN THE ADDITION WAS MADE ON ESTIMATION BASIS. EVEN THOUGH THE ASSESSING OFFICER MADE AN ADDITION OF RS.24,69,070/- ULTIMATELY, THIS TRIBUNAL CONFIRMED THE ADDITION ONLY TO THE EXTENT OF RS.9,69,070/-. IN FACT, THIS TRIBUNAL DIR ECTED THE AO TO ALLOW RS.15,00,000/- AS EXPENDITURE WHILE THE COMPUTING T HE TAXABLE INCOME. THEREFORE, EVEN ON MERIT, THERE CANNOT BE ANY PENAL TY. 4. ON THE CONTRARY, SHRI SAHADEVAN, THE LD. DEPARTM ENT REPRESENTATIVE SUBMITTED THAT THE ISSUE OF LIMITATI ON WAS NOT RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. THE ORDER OF THIS TRIBUNAL IN THE QUANTUM APPEAL WAS DATED 03.01.2012. THE PENALTY WA S LEVIED BY THE 3 I.T.A. NO.190/MDS/2016 ASSESSING OFFICER BY AN ORDER DATED 30.03.2011. THE REFORE, THE ASSESSING OFFICER HAS NO OCCASION TO CONSIDER THE O RDER OF THIS TRIBUNAL DATED 03.01.2012. MOREOVER, BOTH THE AUTHORITIES BE LOW HAD NO OCCASION TO EXAMINE THE ISSUE OF LIMITATION. THEREFORE, AN O PPORTUNITY MAY BE GIVEN TO THE ASSESSING OFFICER TO EXAMINE THE MATTER ONCE AGAIN. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDL Y, THE APPEAL OF THE ASSESSEE WAS FINALLY DISPOSED OFF BY THIS TRIBUNAL BY AN ORDER DATED 03.01.2012 AND THE ASSESSING OFFICER HAS NO OCCASIO N TO CONSIDER THE ORDER OF THIS TRIBUNAL. IN FACT, THE ORDER OF THIS TRIBUNAL WAS NOT AVAILABLE WHEN THE PENALTY WAS LEVIED ON 30.03.2011. THEREFOR E, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER AFTER CONSIDERING THE DECISION OF THIS TRIBUNAL DATED 03.01.2012. 6. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE INCLUDING T HE ISSUE OF LIMITATION IS REMITTED BACK TO THE FILE OF THE AO. THE AO SHALL R E-EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE MATERIALS THAT MAY BE PR ODUCED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH L AW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 4 I.T.A. NO.190/MDS/2016 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 11 TH AUGUST, 2016 AT CHENNAI. SD/- SD/- ( . ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) ' /ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, / /DATED, THE 11 TH AUGUST, 2016. SP. * (-01 21%- /COPY TO: 1. &' /APPELLANT 2. ()&' /RESPONDENT 3. , 3- ( )/CIT (A) 4. , 3- /CIT, 5. 14 (- /DR 6. 5$ 6 /GF.